R v Commonwealth Conciliation & Arbitration Commission; Ex parte Australian Boot Trade Employees' Federation [1966] HCA 17; (1966) 114 CLR 548 (25 March 1966)

HIGH COURT OF AUSTRALIA

THE QUEEN v. COMMONWEALTH CONCILIATION AND ARBITRATION COMMISSION; Ex parte AUSTRALIAN BOOT TRADE EMPLOYEES' FEDERATION [1966] HCA 17; (1966) 114 CLR 548

Conciliation and Arbitration

High Court of Australia
Barwick C.J.(1), McTiernan(1), Taylor(1), Menzies(2) and Owen(1) JJ.

CATCHWORDS

Conciliation and Arbitration (Cth) - Commonwealth Conciliation and Arbitration Commission - Jurisdiction - Parties to industrial dispute - Parties to award - Industrial organization - Whether represents non-members - Claim by employers as to long service leave in respect of non-members - Variation of award - Whether industrial dispute at end - The Constitution (63 & 64 Vict. c. 12), s. 51 (xxxv.) - Conciliation and Arbitration Act 1904-1965 (Cth), s. 4.

HEARING

Melbourne, 1966, March 8, 9;
Sydney, 1966, March 25. 25:3:1966
PROHIBITION.

DECISION

March 25.
The following written judgments were delivered:-
BARWICK C.J., McTIERNAN, TAYLOR and OWEN JJ. On 20th July 1964 a number of on the prosecutor union a claim concerning long service leave. The claim was "that the members of your organization and all other persons employed or hereinafter to be employed under the terms of the Footwear Manufacturing Industry Award 1963, or any award made in substitution therefor, shall be entitled to long service leave upon the terms and conditions of the log of claims attached hereto". The log contained extensive provision relating to the incidence of the proposed award, the period of leave to which employees should be entitled, payment for and the taking of such leave, the granting of leave in advance and so on. The union did not accede to the claim and on 24th November 1964 the Commission made, in settlement of the dispute, an award known as the "Footwear Manufacturing Industry (Long Service Leave) Award". The award was expressed to apply only to persons who should be members of the union at the time of the accrual of the right to leave. (at p551)

2. At a later date, 27th August 1965, the employers made application for a variation of the terms of this award which, if granted, would have had the effect of making it applicable to all employees whether members of the union or not and on 19th November 1965 the Commission made an award in terms of the application. (at p551)

3. It was virtually conceded that if these were the only factual matters to be considered the case was one which fell plainly within the decision of Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96 CLR 317 and that prohibition should go. However, the respondents relied upon the existence of certain anterior facts for the purpose of distinguishing the instant case from that case. In the first place it was said that the union had at an earlier stage initiated a dispute with the respondent employers as to the conditions of employment of all employees. This was a reference to an earlier log of claims served by the union upon the respondents, or many of them, in 1959. The log of claims was not acceded to and it gave rise to the Footwear Manufacturing Industry Award 1963. It is now contended that there was involved in this dispute which, it is said, is still subsisting, a claim to long service leave. It may be said at once that no claim, in terms, was made by this log to long service leave. However, there was a claim, under the heading of "Annual Leave", that all employees should be granted six weeks' leave without loss of pay and exclusive of any public holidays occurring during that period. The claim was that this leave should be taken at the completion of each forty-six weeks' service or, if the employment should be terminated prior to the completion of the first or any subsequent period of forty-six weeks, at such termination. There was also an ancillary claim that each employee before going on leave should be paid in advance the wages and all allowances which would ordinarily accrue to him during the currency of the leave. It was urged on behalf of the respondent employers that this claim was wide enough to cover a claim for long service leave and, accordingly, sufficient, upon its rejection, to create a dispute which included within its ambit a claim for long service leave. We have no doubt that this contention should be rejected. The claim was a claim for annual leave which is quite distinct in character from a claim for long service leave, that is to say, extended leave after the completion of an extensive qualifying period of service. (at p552)

4. Alternatively, reliance was placed upon cl. 28 of the log which embraced a claim that "existing conditions not proposed to be altered by these claims shall continue in force". Under the legislation of the various States, enacted at different times during the period from 1951 to 1958, employees generally had become entitled to long service leave upon the fulfilment of certain prescribed conditions. The contention is that the claim that "existing conditions not proposed to be altered by these claims shall continue in force" was sufficient to bring the entitlement of long service leave within the ambit of the dispute created by the rejection of the log of claims. But it is clear, we think, that cl. 28 was not intended to constitute a claim with respect to the maintenance of the rights of employees prescribed by statute. These rights were already secured by the statutes in question, the log by this clause did not seek any more extensive rights and the claim could be understood to relate only to conditions of employment upon which, apart from prescription by an appropriate award, employers and employees were free to agree and had, in fact, agreed. Accordingly, we think it is impossible to attribute to cl. 28 the meaning that employees should continue to be entitled to their statutory rights. (at p553)

5. Finally, it was contended that it was sufficient to distinguish the present case from the Graziers' Case [1956] HCA 31; (1956) 96 CLR 317 to show that the union had sought the prescription generally of conditions of employment for all employees notwithstanding the fact that the log was silent on the subject of long service leave. The suggestion was made that the log of 1959, coupled with the employers' log of 1964, was sufficient to create a single dispute the ambit of which fell to be ascertained by a joint consideration of the union's log and the later log of the employers. No doubt it is frequently necessary to consider the substance of demands and cross-demands in order to ascertain the ambit of a dispute which has arisen. But we do not think that the approach suggested by the respondent is either appropriate or permissible in the circumstances of this case for a dispute had already arisen upon the rejection by the employers of the union's 1959 log, an award had been made in settlement of that dispute and it is impossible to regard the employers' log of 1964 as being, in relation to the union's earlier log, in the nature of a cross-demand. But even if the approach suggested by the respondent employers were permissible we do not think any distinguishing feature presents itself. The principle upon which the Graziers' Case [1956] HCA 31; (1956) 96 CLR 317 was decided was that an organization of employees is not representative of non-union members so that a log served by employers upon an organization of employees claiming conditions of employment for non-union members is incapable of initiating an industrial dispute. That being so we are of the opinion that the employers' 1964 log of claims could not, in the circumstances, operate in the manner suggested to enlarge the dispute already created by the rejection of the union's 1959 log of claims. (at p553)

6. The prosecutors next made reference to a log of claims which had been served upon the employers by the union in February 1950 in which, inter alia, a claim was made for long service leave for all employees in the industry including employees who were not members of the union. In settlement of the dispute which arose as the result of the rejection of this log the Commission made the Footwear Manufacturing Industry Award 1951 and the claim for long service leave was expressly rejected. Nevertheless, it was urged that the claim for long service leave was still outstanding, that it was within the ambit of the dispute which arose on the rejection of that log, and that the Commission continued to have authority to make an award dealing with this subject-matter. It is unnecessary to consider whether the making of the award which was made in settlement of the dispute which arose upon the rejection of this log brought this dispute to an end for, whether it did or not, the Commission was invested with authority to vary the terms of the award in relation to any matter which fell within the ambit of the original dispute. But the present application is not an application to vary that award and, indeed, any application to vary it in 1965 would have been incompetent since it no longer existed after it had been replaced by the Footwear Manufacturing Industry Award 1963. Further, we think that the dispute which arose upon the rejection of the 1950 log came to an end, at the latest, when the 1959 log of claims was served upon the employers. It is clear, we think, from the terms of that log and the accompanying letter, that it was a claim for the prescription of general conditions of employment which should exclusively operate to regulate the employment of employees in the industry. Implicitly, at least, it amounted to an abandonment or withdrawal of the earlier log and it contained no claim for long service leave. That being so, it is, we think, impossible to assert that the dispute which arose upon the rejection of the 1950 log still continued. (at p554)

7. Finally, we think it is important to observe that the application which was made in 1965 was not an application to vary either the 1951 or the 1963 awards; it was, in terms, an application to vary the provisions of the Footwear Manufacturing Industry (Long Service Leave) Award of 1964. That award was made in settlement of the dispute which arose upon the rejection of the employers' log of 1964 - a dispute which, upon the authority of the Graziers' Case [1956] HCA 31; (1956) 96 CLR 317 , could be rejected by the prosecutor union only qua its own members and the resultant dispute extended only so far. Accordingly, no dispute arose as to the provision of long service leave for non-members and upon any view of the case the application to vary the award in the manner sought could not be entertained. (at p554)

8. Accordingly there should be an order absolute for prohibition in the form which the parties have agreed should be made in the event of this application being successful. (at p555)

MENZIES J. What the prosecutor, the Australian Boot Trade Employees' Federation, here seeks is an order absolute for prohibition restraining the Commonwealth Conciliation and Arbitration Commission and a group of employer organizations who can, for present purposes, be described as "the footwear manufacturers" from taking further proceedings upon an award of the Commission dated 26th October 1965 in a matter "C. No. 1505 of 1965" made upon an application by the footwear manufacturers to extend the Footwear Manufacturing Industry (Long Service Leave) Award 1964 to all employees, whether members of the Federation or not. The award granted the application. The basis of the prosecutor's objection is that, when this latter award was made, there was no existing industrial dispute between the Federation and the footwear manufacturers covering the entitlement of employees not members of the Federation to long service leave. (at p555)

2. In my opinion, the prosecutor is entitled to succeed and the order nisi for prohibition should be made absolute. (at p555)

3. The Graziers' Case (Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union) [1956] HCA 31; (1956) 96 CLR 317 does, I think, establish that employers cannot, by serving a log upon an organization of employees, force that organization into dispute, the substance of which is whether or not the terms and conditions of an award should bind the employers in relation to non-members, as well as to members, of the organization of employees. The basis of the decision is that, because an organization does not represent non-members, an industrial dispute between itself and the employers serving the log cannot arise merely because the organization, which cannot speak for non-members, rejects or does not accept the claim made by the employers. (at p555)

4. To escape from the authority of this decision, it was argued that here there was a dispute between the Federation and the footwear manufacturers about long service leave for non-members of the Federation because the Federation itself had, in one way or another, initiated a claim covering that matter which the footwear manufacturers had but taken up. Such a dispute, it was contended, was an industrial dispute: Metal Trades Employers Association v. Amalgamated Engineering Union [1935] HCA 79; (1935) 54 CLR 387 . (at p555)

5. One contention was that the log of claims served by the Federation upon employers in 1959 - which did seek an award binding all employers with respect to all persons in their employment engaged in manufacturing footwear, whether members of the Federation or not - did cover a claim in respect of long service leave. This was put in two ways. First, it was said that because at the time when the log was served, there were in operation in all the States of Australia Acts of Parliament obliging employers to grant long service leave to their employees, the Federation's claim that "Existing conditions not proposed to be altered by these claims shall continue in force" should be understood as covering a claim for the retention of long service leave in accordance with existing State laws. I do not so read the claim. The words "Existing conditions" do not, I think, apply to statutory obligations independent of, and, so far as paramount law may permit, overriding the terms of the employment. The second way in which it was sought to attribute to the log the effect of introducing long service leave into the area of the dispute was to rely upon the Federation's claim for holidays and annual leave to suggest that the log therefore covered the matter of paid leisure generally, including long service leave. To read the log in this way would, however, be contrary to the authority of Collins v. Charles Marshall Pty. Ltd. [1955] HCA 44; (1955) 92 CLR 529; (1957) 96 CLR 1 where it was decided that long service leave is, and in the Commonwealth Conciliation and Arbitration Act is dealt with as, something separate and distinct from holidays and annual leave. (at p556)

6. Another contention was that even if the rejection of the Federation's 1959 log did not of itself bring long service leave into the area of dispute, the employers' action in serving the log dated 20th July 1964 effectively extended the dispute to cover the matter of long service leave to all employees, whether members of the Federation or not, because the Federation's 1959 log sought the terms and conditions therein set out for all employees. This consideration, however, affords no grounds for distinguishing the Graziers' Case [1956] HCA 31; (1956) 96 CLR 317 , for what the employers' 1964 log sought was to raise a dispute with the Federation about the entitlement of all employees, whether members of the Federation or not, to long service leave. Although, therefore, the Federation's 1959 log, when rejected, did bring into dispute the matter of binding all employees with regard to the matters covered by that log, it is only by virtue of the employers' 1964 log that there could be a dispute about long service leave, covering long service leave for non-members of the Federation as well as members of the Federation. The employers' 1964 log did not merely give definition to an existing dispute; it was directed towards creating a new dispute about long service leave. The decision in the Graziers' Case [1956] HCA 31; (1956) 96 CLR 317 therefore applies to what was attempted in so far as employees, non-members of the Federation, are concerned. (at p557)

7. Finally, it was contended that the award in respect of which prohibition is sought was made in the settlement of a dispute initiated by the log served by the Federation in 1950 which covered long service leave and sought to bind employers with respect to all persons in their employ engaged in the manufacture of footwear, whether members of the Federation or not. There are, I think, at least two answers to this contention. In the first place, the award now in question purports to amend the Footwear Manufacturing Industry (Long Service Leave) Award 1964, not the award of 1951 which settled the dispute arising out of the rejection of the Federation's 1950 log. Furthermore, the dispute arising out of the service of the lastmentioned log had been settled in 1951 by an award, superseded in 1963 by a further award made in settlement of a dispute arising out of the service of the Federation's 1959 log which, as I have already decided, made no claim for long service leave. In these circumstances, it is not possible to regard the dispute which arose out of the non-acceptance of the Federation's 1950 log as still affording jurisdiction to make any award in relation to long service leave. (at p557)

8. The order nisi should be made absolute. (at p557)

ORDER

Order absolute for the issue of a writ of prohibition directed to the respondents prohibiting them and each of them from proceeding further in the application dated the 27th day of August 1965 and identified by the Commonwealth Conciliation and Arbitration Commission as C. No. 1505 of 1965 and from proceeding on the order made by the said Commonwealth Conciliation and Arbitration Commission on the 26th day of October 1965 in so far as it relates to persons not being members of the prosecutor employed by the employers bound by the said order.

Costs of the prosecutor to be paid by the respondents other than the Commonwealth Conciliation and Arbitration Commission.